Recent Changes in Visa Sponsorship Legislation
The risks to a company caught neglecting its compliance obligations as an employer can be highly impactful and in some cases devastating.
The risks to a company caught neglecting its compliance obligations as an employer can be highly impactful and in some cases devastating. As a result the need to introduce VEVO checking as a component in Australian recruitment practices has becoming increasingly apparent. For companies with large numbers of employees and/or recruitment occurring in multiple locations, an IT solution may be the only viable solution to effective compliance checking.
How does immigration law impact on recruitment?
Legislation was introduced in Australia in 2013 – with the innocuous title of Migration Amendment (Reform of Employer Sanctions) Act – which effectively introduced a requirement for employers to check the visa status of their staff. Under Australian legislation, if an employer knowingly employs someone who is unlawful or does not have appropriate work permission – or if an employer behaves ‘recklessly’ by not conducting checks – the employer is liable for civil and criminal penalties including up to 2 years’ imprisonment. Not only could this penalty be applied to directors of the company, it could rise to 5 years in cases where the company repeats its contravention of the requirements.
Legislation of this type is a reflection of our modern ‘on-line’ way of life in the sense that to have a serious effect on employment practices generally there needs to be a capacity to audit a high proportion of employers. Indeed the Government moved away some time ago from putting stamps and visas into people’s passport. Enforcement of the act required the development of a centralised on-line system in which records of work rights could be accessed, and as a result employers now have access to VEVO – Visa Entitlement Verification Online – to check the work rights of their employees. The Tax Office and the Immigration Department further established a data sharing capability through which the tax history and immigration status of an individual can be paired. Finally there has been an increase in the number of inspectors in the Australian Border Force and Office of the Fair Work Ombudsman able to follow up with site visits.
Compliance obligations attached to 457 visa sponsorship
There are multiple obligations for organisations that sponsor 457 or other similar temporary visas. These can be easily overlooked. For example, it is a requirement to notify the immigration department within 28 calendar days when a sponsored 457 visa holder leaves a company’s employment. There is an obligation to keep relevant records, and to provide these if requested. Sponsors can be asked to provide records up to two years after having a sponsored 457 visa holder.
Compliance with the sponsorship obligations might be monitored by Immigration Inspectors, Fair Work Inspectors or Fair Work Building Industry Inspectors who have investigative powers under the Migration Act 1958. Failure to cooperate with Inspectors is a breach of the sponsorship obligations.
If a company does not meet its obligations, the Immigration Department can:
- Bar the company from sponsoring more people for a specified time
- Bar the company from applying for approval to be a sponsor, in relation to this visa or another one
- Subject all of the company’s existing approvals to possible cancellation
Achieving best practice in 2016
All of the above points to an increasing need to adopt IT solutions with regard to immigration compliance. Keeping on top of the data of a company’s workforce is essential to ensure compliance, both in terms of the response required from employers as well as the future direction government policy is likely to take. However data collection and data storage can be complex, given the high range of information involved and the need to collect it at various points in the employee lifecycle. Unless the effort is systematic, it may fall short of its task. Familiarising themselves with data systems available on the market may help HR professionals better understand where pressure points in their existing systems lie.
To this end we will be pleased to provide employers with information regarding our Checkworkrights software. It allows bulk checking of employee data on the VEVO system. It stores copies of key documents electronically, creates time-stamped records and includes a function allowing fully automated, periodic checking to ensure that the status of checks remain current. It can also act as a data storage area to ensure a record is held on the visa history of sponsored 457 visa holders.
For more information on integrating compliance best practice into your business contact Will at checkworkrights on 1300 877 297 or send an email to hello@checkworkrights.com.au
